Has your relative’s claim for NHS Continuing Healthcare Funding (CHC) been rejected by the Clinical Commissioning Group at a Local Resolution Panel? If so, you only have 6 months to prepare your case for a final appeal at an Independent Review Panel (IRP) conducted by NHS England. This is your last real chance of securing CHC for your relative. Your success or failure will depend on your preparation of the appeal submissions and how you present the facts in support of your case. A successful outcome could mean that your relative’s healthcare needs are paid in full, free of charge by the NHS; or reimbursed, if claiming restitution for wrongly paid care fees, retrospectively.
Care To Be Different are privileged to be able to offer our readers an exclusive interview with an Independent Review Panel Chair, who shares some handy tips to help you through the appeal process. We believe that this interview is the first of its kind and we hope that the insights provided will give you a better understanding of what goes on, and what is expected of you at an IRP.
Q1. What makes a good written appeal submission?
Chair: Don’t include previous case law for example Pointon, Coughlan or Grogan (the leading cases) – the IRP will know them and the National Framework is considered by leading legal authorities to be compliant with them.
Identify any health care needs that have not previously been properly considered. Many people identify failings of the NHS to follow due process, in their appeal. These failures are unlikely to change whether a person is eligible or not. Eligibility is based purely on health care needs. Your appeal needs to focus on the actual care.
Keep to the relevant facts. Don’t be tempted to exaggerate the health care needs. Keep your evidence relevant to the period of time that is being reviewed. This can be very difficult when you are dealing with a period of time that was some years ago. Make your points about the levels of need that you disagree with – look at the descriptions next to the levels of need and decide which one is the ‘best fit’.
A good set of four key indicators is a must. This is the hardest part of the assessment and is often not done well. Essentially, all you need to do is consider all the needs from the Care Domains and how they impact on one another – to impact on the nature, intensity, complexity or unpredictability of the care required. In practice it is quite hard to get right and is generally what most applicants fail to consider.
Q2. How long does the appeal submission need to be?
Chair: There is no required length. I’ve seen appeal submissions that are 100 pages long written by solicitors! You can just say that you disagree with the levels of need and identify which ones, and give a few paragraphs to explain why, but don’t forget to say that you don’t think that the four key indicators were properly considered.
Q3. What are your top tips when preparing an appeal?
Chair: Make sure you used any prescribed form devised by your CCG – some use a document called a Notice of Dissatisfaction; others just request an appeal in writing.
Keep to the facts. If you have documentary evidence to back up your facts, then refer to it giving dates and page references and ensure that the CCG has a copy.
Focus on the care needs, identify what carers needed to do each day and what made it more difficult or time consuming for carers to meet those needs.
Identify if these things have not been properly considered by the NHS.
Q4. Do you have any quick tips for summarising the 4 key indicators?
Chair: Read through the key indicators and familiarise yourself with the kind of things that should or could be considered.
Make sure that you focus on all the needs and how they impact on one another.
Make sure that they show how the needs manifested themselves practically.
The four key indicators should explain what the carers need to do for the person each day, how much time and how much difficulty was involved.
Use the 12 Care Domains to guide you through the sorts of things that need to be included.
Make sure that you add a conclusion to each of the indicators to indicate whether or not you think that indicator was met.
Q5. Why is good preparation for the IRP paramount?
Chair: You get one chance to appeal to the CCG (this is called a Local Review), and then one chance to appeal to NHS England (this is called an Independent Review Panel). The people hearing your appeal can only go on the evidence before them. If you fail to identify the relevant issues at the appeal stages, it is less likely that you will get the right outcome.
Q6. What documents do I need to send to the IRP in advance of the appeal and what should/shouldn’t be included in it?
Chair: Generally, the CCG requests on your behalf any records from the care home, the GP, the local hospital and any specialists involved in the care. Sometimes, only one hospital gets contacted, so check that all the hospitals that were involved have been contacted. Sometimes the GP or care home might have changed, so make sure that the records from the old and the new establishment have been obtained.
Sometimes family members keep their own diary – you might want to include this; if there is a lot of information, highlight what you think is relevant.
If you have any additional records, you can add these to the evidence file in advance.
You should only include evidence relevant to the care needs that occurred during the time period being considered. There is a general rule at the Independent Review Panel that no new evidence can be given on the day of the IRP. This is because all the parties need to be able to read and check the evidence and there is not time on the day. In practice you might only see the file one or two weeks before the IRP, so this might not give you time to add in the evidence you want. If this occurs, you can ask for the IRP to be postponed.
Q7. Why is it essential to keep your arguments succinct?
Chair: The IRP has a lot of evidence to read. Often at IRP the bundle is over 1,000 pages long. The key points get lost if you put in too much information.
Q8. Does the IRP ever make their minds up in advance and predetermine the outcome even before the meeting takes place?
Chair: In advance of the IRP, the panel members will all have been sent a copy of the case file to read and will have prepared by reading the file and recording the key issues and key evidence. On the day of the IRP, you will be asked questions by the IRP to help them to fill in any blanks. The IRP members will also ask the CCG questions. The IRP continue to debate the evidence in the closed part of their meeting; this is after you and the CCG members have left. This part of the meeting will last 2-3 hours. The IRP will make its conclusions based on the evidence from the file and from the verbal evidence given by you and the CCG. The IRP consists of 3 independent people. They do not discuss the case between them before the IRP. The decision is never made beforehand. In the vast majority of cases, the decision is made on the day, though in some cases the IRP might need to defer their decision whilst they obtain a key document or specialist advice.
Q9. How much of the case has the IRP read in advance of the hearing?
Chair: The IRP will read all the records on the file. They usually get the file one week before the IRP. By the time the case is discussed at IRP, the panel will have a good grasp of the care needs and will only need to ask supplementary questions. If the case file is scant or poorly documented, the IRP will ask you more questions to fill in any gaps in their knowledge. This is when it is very helpful to have family members present.
Q10. Who sits on the IRP panel and what is their background?
Chair: The IRP consists of 3 members:
- a representative from the social services team at the Local Authority; they will know about CHC and what care the LA is legally able to fund
- a representative from the NHS, often a general nurse, mental health nurse or continuing health care worker; they will know about CHC and how various health conditions will impact on the care needs
- a lay person to chair the meeting; they will know about CHC and will have a background in chairing meetings
Each of the 3 members has a voting right in respect of the eligibility decision, though generally the decision is unanimously made. If it is 2:1 this will be recorded in the IRP report with the reasons why the dissenter disagrees.
Q11. Who else can be present?
Chair: A clinical adviser is sometimes present to ensure that the IRP considers fully the impact of any specialist nursing or mental health requirements.
A note taker is usually in attendance to make a written record of the meeting.
The parties will have been invited to attend; this is a representative from the CCG and the family.
Q12. Where does it take place – describe the room layout – where do the parties sit?
Chair: The IRP can take place in any meeting or conference room deemed appropriate by NHS England. It is usually within an NHS owned building or a hotel meeting room. Usually the tables are set out in a square with the panel sitting opposite the CCG and family.
Q13. How long does the IRP usually take?
Chair: Expect to be at the IRP for 2-3 hours, though the Panel will stay for 2-3 hours longer, after the family and CCG have gone.
Q14. What is the format for the IRP?
– e.g. who speaks first, and when does the family get their say, and have the right to challenge the CCG’s representative comments, etc.?
Chair: Normally the IRP is split into 2 halves:
1) The process – this is where any representations are made about the process that has been undertaken by the CCG. The Chair will ask the family about their complaints and ask the CCG to explain what, if anything, went wrong and why.
2) The eligibility – this is where the Care Domains are discussed. The IRP will refer to the levels of need selected in the Decision Support Tool and Local Review. The IRP will ask which levels each party considers is appropriate, and why, and will ask appropriate questions about the health care needs. Then the four key indicators are discussed. The family and the CCG will be asked to present their views on each of the four key indicators.
Throughout, the IRP the Chair will direct one party, then the other to speak. The Chair will prompt and ask the family questions based on the written appeal and the facts that are relevant to be discussed. The panel members might ask you questions as well. The questions are normally related to the health of your family member, so you are likely to know the answer, but don’t worry if you don’t! If you don’t agree with what the CCG says, you can say so in the IRP. The IRP will be well used to weighing up the evidence, and if the evidence is against the CCG, the IRP will say so in their report.
Try to give your evidence calmly and without making it personal against an individual.
Q15. How formal is the IRP?
Chair: It’s just a standard meeting. If you are used to meetings, this is no different. If you are not used to meetings, you might feel a bit nervous at first. Remember the panel are just ordinary people. It is the job of the panel to make you feel at ease.
Q16. How should I dress for the IRP?
Chair: Dress however you feel comfortable – there is no code. It can be useful to wear a cardigan or jacket that you can take off or put on if you feel too hot or cold.
Q17. What should families say/not say on the day?
Chair: Keep to the relevant facts, answer any questions truthfully and as fully as you are able. To reiterate, don’t launch a personal attack on specific individuals.
Q18. How do the family address the IRP Chair and other panel members?
Chair: Either as ‘The CCG’ or by their name.
Q19. What is the correct tone of language to be used at the meeting?
Chair: Formal but relaxed. Take your lead from the Chair.
Q20. How adversarial is the Panel meeting – what do you say if you don’t agree with the CCG representative’s comments/arguments – and when do you get your say?
Chair: Different chairs have different styles, and this can affect how formal the meeting feels. It should feel like a formal meeting. It is not as formal as a court or tribunal. Often, if a CCG has got things wrong, they will say so. If you disagree with the evidence that they give, wait till they have finished speaking, get the attention of the Chair and indicate that you would like to respond. A good Chair will be looking at your non-verbal responses and will invite you to respond if appropriate.
Q21. What things winds you up as Chair?
Chair: You can’t ruin your case. Give honest and full answers to the questions put to you. The Chair will guide you if you say too much or not enough. The panel will make their decisions based on all the evidence.
Q22. What is the advantage of having a family member in attendance?
Chair: Many advocates don’t have enough experience or understanding of CHC and approach it badly. I would rather a family member present their case themselves as they are much better able to answer questions about their loved one.
Q23. At what stage do the panel reach their decision e.g. is this in a private meeting after the parties have left the IRP?
Chair: After the open meeting has ended, usually around lunch time, the CCG representative and family members leave. The panel breaks for lunch and on return will go through all the findings from the IRP. They will discuss and make comments about the process and will debate and select new levels of need in the Domains. They will then revise the four key indicators. The decision is made at the end of the meeting.
Q24. Who types up the decision and how long does it usually take before the family receive the outcome decision?
Chair: The note taker types the minutes in draft form. The Chair is responsible for revising and checking them. The Panel members will be sent the final draft to comment upon. The report is then sent to the CHC lead and is signed off. It takes 6-8 weeks before you will receive a copy of the report.
CTBD would like to thank the Chair for their insights into an IRP.
Good luck with yours!
Remember, you don’t have to fight this battle alone and are entitled to seek advocacy support to help you with your appeal. But, early preparation is paramount to success. If you need specialist help, visit our one-to-one page.
Visit our website for lots more free information and resources to help with your appeal. In the meantime, here’s a selection of some further reading around the subject that you will find helpful.